Conflict Resolution Among Marginalised People Within the

Framework of Socio-Legal Perspective

(Case Study of Banjarese Domestic Workers in Malaysia)
Helmy Hakim, LL.M., Ph.D
IAIN Antasari

This research primarily aims to review the legal consciousness of mistreated Indonesian
(Banjarese) migrant domestic workers by critically examining the interaction of socio-cultural
contexts and the Malaysian employment law, within the framework of socio-legal perspective.
Among Banjarese domestic workers who migrated to Malaysia and mistreated badly in
the host country, their reluctance to use the legal system or justice-related services to deal with
the experienced mistreatment is a unique phenomenon.
The current research reveals how domestic workers have been involved in legal
proceedings. It was reported that of the 6% of available legal proceedings (110 of 1,732),
conviction had been made by 5%, investigation had been reported by 4% and on-going
prosecution was represented by 1%. Most domestic workers said that no complaint had been
filed (89%, n=98).1
In order to answer those complicated and intriguing questions, the proponents of legal
consciousness argue that courts are just one of the many avenues that disputants have in their
catalogue of choices. Even though the judiciary is believed to monopolize the enforcement of
legal norms, it is not the only source of normative messages in society. Courts are not even the
institutions that handle the majority of legal conflicts and neither occupy the center of legal life.
To the contrary, only a minimal fraction of disputes that we can label as legal enter the judiciary
and from that number is really difficult to know how many are actually resolved. 2 Thirty years
ago, Galanter et.al pointed out that very few cases of dispute were resolved. This minimal

1 Hannah Andrevski and Samantha Lyneham, "Experiences of Exploitation and Human

Trafficking among a Sample of Indonesian Migrant Domestic Workers," Australias national
research and knowledge centre on crime and justice 471 (2014): 6.
1

resolution was even smaller than the number of cases the court was supposed to deal with, the
fraction of which was much smaller than the actual cases of dispute.3
One way to explore legal consciousness is to study people's attitudes on bringing lawsuits
within the framework of legal dispute processing. In fact, to raise a grievance in order to seek
redress for the mistreatment is not a simple one. What has kept domestic workers from bringing
lawsuits to redress their dispute was the complicated mechanism and procedures that they might
find it difficult to meet. The complicated stages were beyond their legal knowledge that some of
them gave up the process. To have a lawsuit, a domestic worker who had mistreatment had to
transform the grievances into a dispute, implying that the mistreated domestic worker identify
the existence of a problem (naming the experience), attribute the problem to another party
(blaming), and eventually, claim some remedy from the blamed party (claiming). 4 A dispute is
signified by the rejection and denial from the blamed and a formal grievance is characterized by

2 M. A. Gomez, "All in the Family: The Influence of Social Networks on Dispute

Processing (a Case Study of a Developing Economy)," (Stanford University (UMI Number:
3253485) Retrieved August 20, 2009, from Dissertations and Theses database., 2007), 23.
3 Bliss Cartwright, Marc Galanter, and Robert

Kidder, "Introduction: Litigation and

Dispute Processing," Law & Society Review 9, no. 1 (1974). Marc Galanter, "Afterword:
Explaining Litigation," Law & Society Review 9, no. 2 (1975). Marc Galanter, "Reading the
Landscape of Disputes: What We Know and Dont Know (and Think We Know) About Our
Allegedly Contentious and Litigious Society," UCLA Law Review 31, no. 4 (1983). Marc
Galanter, "The Day after the Litigation Explosion," Maryland Law Review 46, no. 3 (1986).
Marc Galanter, "Adjudication, Litigation and Related Phenomena," in Law and the Social
Sciences, ed. L Lipson and S Wheeler(New York: Russel Sage Foundation, 1987).
4 W. L. F. Felstiner, R. L. Abel, and A. Sarat, "The Emergence and Transformation of
Disputes: Naming, Blaming, Claiming," Law & Society Review 15, no. 3/4 (1980-1981a).
2

public sphere requiring formal grievance procedure. The dispute pyramid depicts the stages by
which domestic workers have to pass when making a lawsuit in employment.5
This research is to undertake a socio-legal analysis the various ways in which the
Banjarese domestic workers construct and shape their legal consciousness based on their
interpretation, tactics, aspiration and sense of identity. It has been highly suggested that their
peculiar position within the intersection of cultural gender-biased, racial discrimination as
migrants and underclass household work structures will effect and color the pattern of the legal
dispute processing they develop.
Labor Migration into Malaysia
Globalization within the economic sphere, is not simply characterized by liberalization of
trade, services, investment, and capital, but also marked by transnational movements of people in
search of better lives and employment opportunities elsewhere. It has been estimated that number
of people who have settled down in a country other than their own is nearly 232 million.6 New
figures from the UN Department of Economic and Social Affairs (UN-DESA) show that 232
million people, or 3.2 per cent of the worlds population, live abroad worldwide, compared with
175 million in 2000 and 154 million in 1990.7
5 Galanter, "Reading the Landscape of Disputes: What We Know and Dont Know (and
Think We Know) About Our Allegedly Contentious and Litigious Society." Yolande Wouters and
Francis van Loon, "Civil Litigation in Belgium: The Construction of the Pyramid of Legal
Dispute a Prelimanary Report," Droit et Societe 20, no. 21 (1992).
6

ILO

(International

Labour

Organization),

"Labour

Migration,"

(2015).

http://www.ilo.org/global/topics/labour-migration/lang--en/index.htm (accessed 22 June 2015).

7 United Nations Department of Economic and Social Affairs, "Number of International
Migrants

Rises

above

232

Million,"

(2013).

http://www.un.org/en/development/desa/news/population/number-of-international-migrantsrises.html (accessed 22 June 2015).

3

Aside from international migration, according to the International Labor Organization

(ILO), most international migration today is related to seeking employment. More than 90 per
cent of all international migrants are workers and their families. 8 Furthermore, foreign-born from
Asia only recently overtook foreign-born from Latin America and the Caribbean as the largest
diaspora group. In 1990, international migrants born in Asia and Europe accounted for the largest
number of foreign-born living outside their major areas, both numbering about 21 million. By
2010, Asians had increased to 37 million, foreign-born from Latin America and the Caribbean to
30 million and foreign-born Europeans numbered 20 million. And last but not least, Within Asia,
foreign-born from Southern Asia were the most likely to reside outside their region of birth (23
million).9
There has been a recent trend within the international labor migrant, where women made
up about half of all migrants for several decades. In 2005, the percentage of female migrants has
reached nearly 50 percent of all migrants, up from 47 per cent in 1960. 10 This phenomenon

8 ILO (International Labour Organization), "Labour Migration: Facts and Figures," (2014).
http://www.ilo.org/global/about-the-ilo/media-centre/issue-briefs/WCMS_239651/lang-en/index.htm (accessed 25 June 2015).
9 Department of Economic and Social Affairs United Nations, "International Migration
2013: Migrants by Origin and Destination," Population Facts no. 3 (2013) (accessed 25 June
2015).
10 UN (United Nations), "Trends in Total Migrant Stock: The 2005 Revision," (2006).
http://www.un.org/esa/population/publications/migration/UN_Migrant_Stock_Documentation_2
005.pdf (accessed June 30, 2010).
4

called feminization of migration,11 has resulted in an increased number of women who migrate
independently, including in Asia.
Such a migration for domestic work opportunities overseas has been prevalently
practiced for a quite long time but was tremendously apparent in the late 1970s. Nowhere else in
the world was the trend as significant as in Asia. 12 The great number of female migrant flow from
Asian countries was approximated to be 800,000 each year which steadily increased over years. 13
Such was the case for Indonesia, the Philippines, and Sri Lanka, which supplied the great number
of female migrants for domestic employment overseas.14
In terms of migrant destination, the most popular one for Asian migrants until 1990s was
the Middle East. However this trend has shifted from the Middle East to other Asian countries
whose economies have boomed in recent decades. Even by 1997, destinations such as Malaysia,
Singapore, Japan, Hong Kong, and South Korea had surpassed the Middle East. 15 These
11 Feminization of migration is a recent trend in migration. The term constitutes the
changing the gendered patterns of migration and higher rate of women migrating independently.
Furthermore, it also denotes that their independent migration is rather in the framework of
searching jobs, than merely as family dependents together with their husbands. In fact, the
research on gender roles in migration has attracted more attention substantially.
12 United Nations.
13 Nana Oishi, Gender and Migration: An Integrative Approach (University of California,
San Diego: The Center for Comparative Immigration Studies, 2002).
14 Nancy V.

Yinger, "The Feminization of Migration: Limits of the Data," (2007).

http://www.prb.org/Articles/2007/FeminizationofMigrationLimitsofData.aspx (accessed June 30,

2010).
15 P. Wickramasekera, Asian Labour Migration: Issues and Challenges in an Era of
Globalization (Geneva: International Labour Office, 2002).
5

countries rely upon migrant workers to fill labor shortages that arise when the domestic labor
force cannot meet the labor demands created by their fast-growing economies. On the other
hand, their citizens are unwilling to take up low-paying, labor-intensive jobs with poor working
conditions.
The great employment opportunities, although in the field of domestic position, has lured
a great number of labor migration particularly in Southeast Asia in the second half of the
twentieth century.16 The increasing labor movement across the state borders had resulted in more
complex and significant labor management by Malaysian authorities.

It was reported that

Indonesians ranked third in labor number below Chinese and Indians during the first half of the
20th century.17 These developments have been shaped by economic, social, and demographic
changes in the region, consistent with accelerated globalization, which has profoundly affected
Indonesian labor migration to Malaysia.18 Thus, there has been an argument that Indonesians in
Malaysia make up the largest irregular migration flow in Asia and globally are second only to
Mexicans migrating to the United States.19
Historically, Indonesian migration to Malaysia has started since a long time ago.

20

Currently, Indonesians are the largest group of foreign workers that forms 83 percent of the total
16 Ibid., 18.
17 Graeme Hugo, "Migration in the Asia-Pacific Region," in Policy Analysis and Research
Programme of the Global Commission on International Migration (2005a), 1.
18 Amarjit Kaur, "Mobility, Labour Mobilisation and Border Controls: Indonesian Labour
Migration to Malaysia since 1900," in 15th Biennial Conference of the Asian Studies Association
of Australia (Canberra 2004a).
19 According to Liow: "the long-term, undocumented migration flow of Indonesians into
Malaysia is arguably the second largest flow of illegal immigrants after the movement across the
U.S.-Mexico border." Joseph Liow, "Malaysia's Illegal Indonesian Migrant Labour Problem: In
Search of Solutions," Contemporary Southeast Asia 25, no. 1 (2003): 44.
6

foreign labors in Malaysia.21 They fill up labor shortages shaped by Malaysias economic policies
of the New Economic Policy in 1971 which aggressively chased export-oriented
industrialization and public sector expansion. The policies brought about great job growth in
urban areas and consequently invited a mass migration of rural Malaysians to the cities. Another
contributing factor to the wide-open job opportunities was the booming growth of industries,
particularly in manufacturing and construction, which had not lured the local job seekers. The
unfavorable employment statuses in both fields attributed with low-paying works have left the
job opportunities unoccupied optimally. Another coupling factor is the lack of adequate work
opportunities with commensurate income in the domestic state and the rapidly increasing
demand for domestic workers among the middle-class group has led to the greater flow of
migrant workers into Malaysia.
In the 1947 Census of Malaya when a break-down of the Indonesian population in the
country according to their various areas of origin was last made, the five islands from which the
Indonesian migrants came were Java, Kalimantan, Sumatra, Bawean and Sulawesi, in that order
of numerical importance. The total Indonesian population in Malaya was .309,150, consisting of
189,400 Javanese, 62,400 Banjarese, 26,300 Sumatrans, 20,400 Boyanese and 7,000 Bugis. The
remainder were migrants from other parts of Indonesia.22
The Banjarese, who hailed from the immediate hinterland of Banjermasin in South
Kalimantan, formed 20 per cent of the recorded Indonesian population in Malaya. Although the
bulk of the Banjarese immigrants were rice-cultivators, a few of them were also engaged in
growing rubber and coconuts on their own smallholdings.
Legal Protection on Domestic Workers
20 T.S. Bahrin, "The Growth and Distribution of the Indonesian Population in Malaya,"
Bijdragen 123 (1967).
21 Human Rights Watch (Organization) and Nisha Varia, Help Wanted: Abuses against
Female Migrant Domestic Workers in Indonesia and Malaysia (New York: Human Rights
Watch, 2004), 8.
22
7

Nowadays, many countries in the world have established a complex system of laws and
institutions expected to protect the interest of domestic workers. This model of legal protection
has broader significance in legal theory, it also reflects assumptions in dominant research
paradigms in law and society, and even this model and its critique have been applied to other
areas of law.23 However, this legal protection model seems to be highly speculative, since
employment discrimination has faced a unique problem. Sutton maintains that Job
discrimination is largely, though not wholly, a private sector phenomenon. Effective reform must
change the behavior not only of government agencies but also of private employers. He further
asserts that it is definitely difficult project for at least two reasons. The first is ideological, in the
sense that family of common law legal system (like Malaysia) have traditionally been suspicious
of government intervention in the private sphere, in particular in the economic market place. The
second is a matter of legal enforcement, since the maid mistreatment has likely been occurred in
the domestic sphere.24 An official from the Malaysian Ministry of Human Resources who wish to
remain anonymous said: This issue is difficult to monitor. They are one by one (in individual
households), how can we monitor? It is up to them to report. To get an organization to monitor
maids is unlikely. Who is going to do that?25 Further, Schneider pointed out that how to
persuade victims to take on a rights defined self is a critical problem. In line with this, Merry
underlined that this situation is also profound to a range of other rights-based social reform
movements that rely on victim activism and rights claiming in order to promote reform such as
disability rights and employment rights.26
23 Kristin Bumiller, "Victims in the Shadow of the Law: A Critique of the Model of Legal
Protection," Signs 12, no. 3 (1987): 422.
24 J. R. Sutton, Law/Society: Origins, Interactions, and Change (California, USA: Pine
Forge Press, 2001).
25 Human Rights Watch (Organization) and Varia, 60.
26 Mark Goodale and Sally Engle Merry, The Practice of Human Rights: Tracking Law
between the Global and the Local, Cambridge Studies in Law and Society (Cambridge; New
8

From the legal protection model perspective, the law is authoritative and effective
instrument that offers victims with a tool by which they can use to force perpetrators to comply
with legal rules. This model adopts that those who have suffered injuries will recognize their
harms and invoke the law through litigation. In brief, they assume that those in the protected
class are able and convinced to bear these burdens.27 This kind of strategy is called as litigious
policies,28

or Complaint-Driven Enforcement Model29 , where the enforcement relies on

individuals bringing their rights of action. However, strategies of equal protection may
inadequately deliver the burdens imposed on domestic workers because they accept the
authoritative discourse of law rather than inquiry the compatibility of legal rules with their legal
conception. For the employment law, to change social circumstances through the formal legal
system, domestic workers must recognize that they have suffered a harm, decide to do something
about it, and take action.
As a matter of fact, it is now trite to recapitulate that the modern justice system through
aggressive prosecution and legislation of punitive laws against batterers, has failed to respond
adequately to crime generally and to domestic mistreatment in particular.30 Many research
showed that strong legal protection makes a difference, but it also displayed that even in the
United States of America where legal protection is strong, some victims are not afforded their
York: Cambridge University Press, 2007), 344.
27 Bumiller: 106.
28 Thomas F Burke, Lawyers, Lawsuits, and Legal Rights (Berkeley: University of
California Press, 2002), 4.
29 Human Rights Watch (Organization), Hidden in the Home: Abuse of Domestic Workers
with Special Visas in the United States (New York: Human Rights Watch (Organization), 2001),
32.
30 Randy E. Barnett and John III Hagel, Assessing the Criminal. Restitution, Retribution,
and the Legal Process (Cambridge: Ballinger Publishing, 1977).
9

rights.31

In other words, amendments of the Malaysian Employment Act 1955 to include

domestic workers appears to be insufficient to guarantee the full provision of victims rights in
practice. It can be argued that it appears to be necessary, but not a sufficient condition to
guarantee the protection of domestic workers rights, ... because a host of intervening factors,
such as knowledge, funding, and enforcement, mediates the actual delivery of victims
rights.32
Research Methodology
This study employed socio-legal research in conducting the research on the protection of
Banjarese domestic workers in Malaysia. In this type of research, law itself turns problematical
both in the sense that it may be a contributor to the social problem, and in the sense that although
law may offer an answer or part of an answer, other non-law answers, including political and
social re-arrangement, are not prevented and may so be selected.33
31 The Human Right Watch Report (2001) concluded that The United States has failed to
protect migrant domestic workers' rights and to guarantee that workers have an "effective
remedy" if their rights are offended. As a matter of fact, the report indicated that there were only
six out of twenty-seven domestic workers attempted to file complaints against their employers.
Though most of the workers knew that their employment conditions violated U.S. law they did
not wish to or did not know how to file legal complaints against their employers see further
Human Rights Watch (Organization), Hidden in the Home: Abuse of Domestic Workers with
Special Visas in the United States..
32 Dean G.

Kilpatrick, David Beatty, and Susan Smith Howley, The Rights of Crime

Victims: Does Legal Protection Make a Difference? (Washington, DC: National Institute of
Justice, U.S. Department of Justice, 1998), 2.
33 Mike McConville and Wing Hong Chui, eds., Research Methods for Law (Edinburgh:
Edinburgh University Press, 2007); ibid.
10

Based on the above assumptions, it can be argued that this research was primarily a
qualitative. It designed to discover then analyzed mistreated Banjarese domestic workers legal
consciousness in accessing legal justice. The qualitative approach is more suitable to be applied
in this research since human experience is contextually shaped and accordingly, is contextually
integrated. This perspective puts qualitative research in naturalistic style which prohibits
construction and modification of context to keep research in normal everyday context.34
Case study strategy in this study is really useful to answer the inquiry questions for various
causes. Case study enables the assignment of a particular sense and objective to a particular
object or event through the provision of idea about its local context and situational constrains. 35
Therefore, the results of case studies are obtained from the real-world.36 Since it attends details,
nuances and interdependences, a holistic comprehension may be obtained from the investigated
phenomenon to result in total and natural comprehensive picture. 37 This research aims at
identifying the Banjarese domestic workers legal consciousness when they consider getting
involved in legal dispute processing. This process is inherently attributed to Malaysian legal
system and social constraint. Accordingly, this purpose justified the choice of case study method.
In this study, mistreated Banjarese domestic workers were entities that constituted cases.
They are Latifah from Banjarbaru, Jumanah from Pleihari and Hesti from Landasan Ulin. Those
3 (three) Banjarese domestic workers involved in this study had distinguished themselves from
the majority of domestic workers who experience mistreatment during their service in Malaysia.
34 John W. Creswell, Qualitative Inquiry & Research Design : Choosing among Five
Approaches, 2nd ed. (Thousand Oaks: Sage Publications, 2007).
35 Robert E Stake, The Art of Case Study Research (Thousand Oaks: Sage Publications,
1995), 16.
36 Jan Dul and Tony Hak, Case Study Methodology in Business Research (Oxford:
Butterworth-Heinemann, 2008), 5.
37 M. Q. Patton, Qualitative Evaluation and Research Method (Newbury Park, CA: SAGE
Publications, 1990), 51.
11

They were representatives of unique phenomena, which are rarely accessible to scientific
investigation.
Interviews with three employers who had employed Banjarese domestic workers for several
years yielded interesting information on issues of control and of the stereotypical identities of
Banjarese domestic workers. To obtain different detailed information, employers with different
backgrounds were interviewed. The employers were represented by different professional
background: a male lecturer at the university, a female retired person, and a female
businesswoman. Further interview with Domestic Workers Agencies, Officials of Indonesian
Embassy and Consulate General, Non Governmental Organizations (NGOs) were also
conducted.
Using in-depth interviews, and documentary research, this methodology can effectively
identify the daily experience of Banjarese migrant domestic workers in normal and contextual
settings. Case study employed in this study is suitable since it is contextually arranged to result
in dynamic process with multivariables. Done in this way, transformative process, which is one
of the characteristics of dynamics of qualitative research, will be clearly portrayed. How
Banjarese migrant domestic workers develop legal consciousness is a transformative and
dynamic process from accepting the defeat to claiming the rights and redress against the
perpetrators.
Migrant domestic workers within the intersection of gender, class and race
Race, ethnicity, gender and class are socially constructed to produce and maintain social
stratification among people within the society.38 Social stratification has classified people in
different classes based on particular aspects. Being mostly female, migrant, and unskilled,
domestic workers are classified into the least respected class. The low stratum is attributed to
such numerous reasons as race, ethnicity, gender and status socially constructed by the
employers, agencies and the society in general. The socially constructed images of domestic
workers resulting from through the intersection of race, ethnicity, gender and status have resulted
in stimulate oppression, rights violation, and discrimination in the society. Gender-bias has
traditionally and customarily worsened the status of underpaid workers. The justification may
38 J. Misra and I. Browne, "The Intersection of Gender and Race in the Labor Market,"
Annual Review of Sociology 29, no. (2003): 490.
12

derive from the traditional perspective of free maternally-attributed housework. Being a paid
domestic worker, a woman is thought to be better off than doing purely unpaid housework. In an
informal conversation in Kuala Lumpur an employer who hired an Indonesian/Banjarese
housemaid explained that: "The maids are actually fortunate to secure a job in Malaysia and earn
a salary in Ringgit Malaysia in addition to free shelter, clothing, and food,

which is

comparatively much higher than that earned in the same domestic work in Indonesia. Even
worse, they may have earned much less or even no salary when they have to work for their own
families." The low-ranked status is also attributed to the migrant status, implying the unavailable
alternatives but receiving the domestic works at any payment level. Equally important, low
education seems to contribute to the negative labeling for domestic workers. Most domestic
workers are those with limited access to formal employment due to their failure to compete in
rarely available job opportunities prevalently experienced by the people in such developing
countries as Indonesia. Failing to meet the formal requirements and limited work opportunities in
both formal and informal sectors has led the marginalized people, mostly unskilled women, go
abroad to secure a job.
All participants in the case study were rural and isolated women with average schooling of
either elementary or lower secondary level. The presentation of this case study is in line with
Hannah Andrevski and Samantha Lynehams findings 39 that domestic workers exploited in
Malaysia had only a basic level of formal education. Forty percent of respondents received
elementary-level (primary school) education or no formal education at all (n=736) and less than
one-third completed high school (29%; n=525). Accepting the job as a domestic worker is
inevitably their only chance of employment and the seemingly fascinating migrant domestic
work has lured the needy and desperate women wishing to give up the long-standing poverty and
escape from their own marital despair at once.40 The majority of these women seek employment
39 Andrevski and Lyneham.
40 The current research by Hannah Andrevski and Samantha Lyneham reveals that just over
one-third of Indonesian domestic workers in Malaysia were married (38%, n=692); a similar
number reported being single (n=679, 37%), 14 percent (n=259) were divorced and eight percent
(n=141) were widowers. Over half of respondents reported having at least one child (56%,
13

in the domestic service sector, as domestic work attracts high wages (compared with other
occupations in Indonesia) for positions that require minimal skills.
The influx of domestic workers is characterized by ethnic minorities, alien workers, or
unskilled workers from under-developed and economically poor countries. Accordingly, lower
employment sector has been heavily assigned to race and ethnicity. Being ethnically-minor,
alien, unskilled, and migrant has put them in different treatment from other racial-ethnic
backgrounds or nationalities. Categorized in this group of unfortunate workers, female unskilled
migrant domestic workers from such countries as Indonesia belong to others. 41 Belonging to
this stigmatized group, domestic workers influence have been trapped in the ethnically-andracially-based social hierarchy and unequal treatment as reflected in the exclusion of migrant
domestic workers from the local labour law. Such a discriminating law is not applied to the local
domestic workers who enjoy privileged local legal protection and other national legislations and
laws. Holding

the status as the citizen of Malaysia, they are favourably treated. Another

discrepancy clearly practiced through lower wage for longer working hours among particular
migrant domestic workers. Higher payment is generated by domestic workers from Philippines
while domestic workers from Indonesia, Bangladesh and Myanmar are relatively underpaid. 42
Preference of employers and agencies to recruiting domestic workers from Indonesia,
Bangladesh and Myanmar instead of domestic workers from Philippines is apparently due to the
facts that they are less educated, cheaper and more docile than domestic workers from
Philippines.43 In a telephone conversation, an agent in Kuala Lumpur promoted Indonesian

n=1,006), one-third (n=396) of whom were not married (ie were single, divorced, widowed or
separated). See ibid.
41 Misra and Browne: 502.
42 Nicola Piper, "Rights of Foreign Workers and the Politics of Migration in South-East and
East Asia," International Migration 42, no. 5 (2004): 77.
43 Ibid.
14

maids to be more profitable for domestic work employment due to their characteristically being
more diligent, more docile and cheaper.44
In addition, being racially and ethnically different has put the domestic workers in
systematic oppression and infringement of rights of domestic workers. The condition is justified
with the stigmatized status of being others or outsiders by the society. Stigmatized class of
others or outsiders has resulted in negative assumption about domestic workers. Since they
are perceived to be lazy and unintelligent and accordingly they are not eligible for rights and
benefits.45
The negative images deriving from racial and ethnical status of domestic workers indeed
have resulted in oppression and violation of domestic worker rights. Their status of being others
or outsiders has limited their access to nation-wide. 46 The status of being an outsider of the
society is indeed referred to race and ethnicity. The negative images of domestic workers in
Malaysia are only applied to the migrant domestic workers instead of the local people who are
working in the domestic sector. Accordingly, they are discriminatively and unequally treated.
Gender has been a sensitive issue in any social aspect. Such is also the case in domestic
works mostly performed by women.

Using gender as another basis of stigmatization for

domestic workers, the society has practiced discrimination and infringement of the rights of
female domestic workers. Underpaid female domestic works are traditionally classified as
informal sector in a private house. In spite of their living-in the house, they are degraded to
merely household helpers instead of family members. 47 Not only do employers treat female
domestic workers as household helper but they are also the left hand of the wife. The female
employer has direct supervision of domestic workers compared to male employer since domestic
workers are portrayed as the assistant of the wife. A female employer who is a teacher in
44
45 J Elias, "Struggles over the Rights of Foreign Domestic Workers in Malaysia: The
Possibilities and Limitations of Rights Talk," Economy and Society 37 no. 2 (2008): 293.
46 Ibid., 294.
47 Ibid., 292.
15

Changlun explained that it is a female employers who exercised direct supervision on domestic
workers since male employers had no adequate time to do so. Beside that, male employers are
not allowed to get close to female domestic workers. I have frequently heard that some female
domestic workers are said to have seduced their male employers.
Attribution to lower class of employment is related to the commonly perceived hierarchy of
social class. Becoming the members of this group, domestic workers have to suffer continuous
practice of oppression, discrimination and infringement of rights by employers. They are
classified in lower class of employment since they perform 3Ds (difficult, dirty and demeaning)
works. In Malaysia, class hierarchy is practiced between local people and migrant workers and
within migrant workers. This stratification is based on the status of employment in the society.
Migrant workers are socially classified into skilled workers in high class employment and unskilled migrant workers in lower class job. Domestic work is classified into the lowest class of
employment. Domestic work is characterized by unskilled labour and is commonly viewed as
unreal work due to the informality or household. It is perceived that only ethnic minorities, those
with low economic condition, or those migrant workers from neighbouring countries are suitable
for the work. Furthermore, skilled migrant workers in Malaysia are viewed as one of the actors
behind the economic growth and consequently they are eligible to have privilege in enjoying
numerous rights same as the local people. Thus, with the privileged rights skilled migrant
workers are socially respected in the society.48 On the contrary, for the society and middle class
employers, employing the domestic workers will mean that they are socially respected.49
Violation, infringement, and abuse admittedly derive either from race, ethnicity, and gender
or intersection of them. It seems that the intersection of the three aspects has contributed much
on the prevailing violations of rights by the society (employers and employment agencies) in
48 Jr Robert Hughes and Maureen Perry-Jenkins, "Social Class Issues in Family Life
Education," Family Relations 45, no. 2 (1996): 292.
49 Martin Ruhs and Ha-Joon Chang, "The Ethics of Labor Immigration Policy,"
International Organization 58, no. (2004): 72. This article clarified that hiring domestic worker
is similar to possessing or owning material items that symbolize an achievement to maintain
higher social status in the society as middle class family.
16

Malaysia. Consequently, they are stigmatized and portrayed and consequently they are prone to
oppression, discrimination and infringement of domestic workers rights. In addition, this
intersection also establishes social hierarchy within the society in which domestic workers are in
the lowest level. Modern servitude or slavery is practiced through mistreatment of migrant
domestic workers as the commodity that employers may purchase from the labour market
through employment agencies.
Indonesian maids, despite "their lowly position or status as servants, strongly felt that they
still had the right to demand respect from their employers. But from the middle-class employers'
perspective the fact that they provided their live-in Indonesian maid full board and lodging and
monthly wages meant that they had the moral right to dictate the latters every move without
any demarcation over public (work, duties) and private (the maids personal life, privacy)
domains. The researcher had an opportunity to have a conversation with a male employer in
Sintok. He happened to be an employee of one university in Malaysia. This employer said that
his domestic workers escaped from the home and gave up the job. Madly he complained: I have
no idea why she run away from home. I have paid much money to the Agency, almost RM 8.000.
When she first worked here, she knew nothing while the Agent said that she was a skillful and
well-trained worker. The fact is that she broke the washing machine and cooker. She burned
some of our clothes while ironing. I suffered financially. I have provided her proper clothes and
food just like what we have. She got her own bedroom as well so that she could take a rest
comfortably and conveniently. As a domestic worker who worked at home, she should have been
available to work 24 hours as necessary. Moreover we have little child who can easily wake up.
We have given all she needed. But she abandoned the home and gave up the job.

Legal consciousness of injustice and strategy of resistance

Legal consciousness of injustice is an important aspect in social interaction where possible
social gaps may exist. Mutually beneficial interaction will be difficult to achieve due to the
embedded status discrepancy between one person and another. The people involved in the
interaction are equally potential to infringe others rights, and accordingly, good legal
consciousness of injustice has to be grown up in order to frame a fair and just relation.
Being a slow-moving mechanism, law is largely inaccessible to everyday citizens.
Consequently, the law has been subjective and consistently it is difficult to result in equitable
17

outcomes for everyday people and the less powerful. With the Against the Law consciousness,
individuals may either accept the problem or "lump it." However, this consciousness frequently
may take the forms and levels of defiant action. The following is the excerpt from Ewick and
Silbey about Against the Law consciousness and the way it leads to resistance:
Law is a product of power. Rather than objective, legality is understood to be arbitrary
and capricious. Unwilling to stand before the law and unable to play with the law, people
act against the law...people talk about the rules, tricks, and subterfuges they use to
appropriate part of the law's power.50
Resistance has been a kind of strategic attitude or behaviour to deal with the unexpected
moments or events. Considering the significance, it has to be appropriately studied. To analyze
the role of law in everyday resistance to inequality within this against-the-law orientation,
Marshall introduced a theoretical framework which she calls the legal consciousness of injustice.
This framework is intended to understand the bottom-up relationship between law and social
change since it is believed that changing social, political, and cultural values might lead to
everyday life conflicts. Equally important to law are political debates and organizational
practices since they might result in disputes.
The framework is employed in an empirical study of sexual harassment in a particular
workplace. In a specific way, attempts are taken to identify how women confront their
experiences with unwanted sexual attention at work. In particular, she examines the
interpretation and response to experiences. Arguably, the assigned meaning of these experiences
reflects more than just legal rules but also broader political and social debates about equality and
the role of women in the workplace. These meanings have become the basis for women to come
to decision of whether to complain or to ignore the behaviour or even to participate in sexual
joking and banter with co-workers. The women's decisions and management responses shape the
meaning of sexual harassment laws in particular workplaces.51
Inequality is not an exclusive stand-alone issue. It results from unequal position and power
between the involved parties and results in unfair process and unjust outcome. As Marshall
50 Ewick and Silbey, 28.
51 Anna Maria Marshall, Confronting Sexual Harrasment: The Law and Politics of
Everyday Life (Hants, UK: Ashgate Publishing Company, 2005b), 2-3.
18

reveals, inequality is believed to construct everyday life. Such crucial aspects of daily life as
schools, jobs, neighbourhood, and healthcare are influenced by system of stratification based on
class, race, sex orientation, and ethnicity. We take for granted whatever we routinely do in our
daily lives. We live the broad social forces the way they are due to the inevitability and
naturalness of these routines. In spite of the unfortunate nature, inequality has to be widely
accepted aspect of social life.52
While some people take oppression for granted as the inherent part or risk of life, some
others refuse any kind of unequal treatment. Historically, challenges had emerged at particular
moments. These challenges normally occur in public policy arenas, such as courts or legislatures
while resistance may occur in both public policy and everyday life. The emerging "new" social
movements have politicized the personal and explicitly encourage everyday resistance.
Therefore, resistance can be found in private or public aspects and accordingly will result in
different responses from the people involved in disputes.
When people obtain and develop new oppositional interpretations of their experiences, new
expectations, desires, needs, and grievances will result. People will adopt new meaning of their
daily lives. Since they have new concept about what they deserve to have in life, they become
demanding for better treatment. While the demands are based on new idea of life, adaptation and
adjustment are required. Unless they are adapted and adjusted, opposition from spouses,
children, neighbours, co-workers, or teachers may result. Therefore, unless inequality is
challenged wisely and properly, it may result in unexpected everyday life conflict from which
social changes will seemingly result.53
McCann and March reveals that resistance "...entails efforts by subaltern groups either to
renegotiate the terms of dominant power relations or to construct a new separate, alternative
forms of practical activity..."54 In Weapons of the Weak: Everyday Forms of Peasant Resistance,
Scott examines the mechanisms by which the less powerful resist entrenched authority. He
52 Ibid., 1.
53 Ibid., 2.
54 Michael McCann and Tracey March, "Law and Everyday Forms of Resistance: A SocioPolitical Assessment," Studies in Law Politics and Society 15, no. (1995): 230.
19

ethnographically investigated the peasant workers in Southeast Asia where elites had material
and cultural domination. Based on his previous work on peasant rebellions, he concluded that
there was not any enduring distinction between resistance and conformity. It was stated that the
less powerful may take some kinds of largely individual resistant acts frequently committed
under the guise of compliance. Scott suggests that everyday forms of resistance can include such
wide spectrum of actions as foot dragging, dissimulation, desertion, false compliance, pilfering,
feigned ignorance, slander, arson, sabotage, and others." 55 This implies that resistance may take
either such hard form as frontal opposition or such soft forms as the aforementioned acts.
Only few people are capable of developing some form of resistance to the supposed
injustice as a copying strategy. It is most likely that resistance is predominantly expressed by
individuals with an Against the Law consciousness. Considering the significant role of againstthe-law consciousness in the resulting resistance, it is important to recall the dynamic and
interactive nature of these categories of consciousness. Empirically, the applications of Ewick
and Silbers schema have demonstrated that there are multiple types of legal consciousness
among individuals. Although " consciousness forms are not always in correspondence to actors,"
this typology enables us to understand the mechanism and interpret the sometimes "multi
faceted, contradictory, and variable legal consciousness" of individual environmental activist.56

Strategies deployed by domestic workers as alternative onto litigation

According to Foucault resistance is inevitably inherent in the exercise of power. This is
particularly true since the effective exercise of power need not imply the removal of liberty. 57
This implies that to comprehensively study the power, it is necessary to concurrently study 'total
structure of actions brought to bear' on the actions of others in particular cases, and of the
55 J. Scott, Weapons of the Weak (New Haven: Yale Univ. Press, 1985), xvi.
56 Ewick and Silbey, 50; Susan S. Silbey, "Making a Place for Cultural Analyses of Law,"
Law & Social Inquiry 17, no. 1 (1992): 46.
57 B Hindess, Discourses of Power: From Hobbes to Foucault (Oxford: Blackwell
Publishers, 1996), 101.
20

resistances and evasions encountered by those actions.58 Based on this perspective, as 'subjects of
the effects of power and hegemony' domestic workers are equally capable of 'exercising their
power on their own account' since they are themselves 'in a position to act on the actions of
others'.59
The focus of study on resistance by subordinated or dominated groups has shifted from
collective violent uprisings and revolutions aimed at overthrowing systems and dominant
ideologies to also encompass non-confrontational, fragmented and more ad-hoc styles of
resistance pervasively practiced in everyday relations. 60 Some examples of these nonviolent
forms of resistance identified by Scott, in his work on smallholders and landless labourers in
Peninsula Malaysia are foot-dragging, discursive protests, ridicule, and petty acts of
noncompliance, sarcasm, dissimulation, and perseverance against overwhelming odds.61
Other strategies were also reviewed by Romero. Among others are chicanery, confrontation,
tricks, silence and mockery. These strategies are utilized by domestic workers to manipulate their
being degraded by employers.62 Meanwhile, Dill revealed that domestic workers tactically
employed deferential acts or 'to play the part expected of them' by white employers. These acts
are aimed at 'fooling' white employers while she noted that Cock supposed that domestics put on
deferential acts as a 'protective disguise' to maintain their integrity and personalities intact. 63
Therefore, these researchers similarly view domestics' displays of deferential acts as consciously

58 Foucault 1982 cited in ibid., 101.

59 Ibid., 101.
60 L Abu-Lughod, "The Romance of Resistance: Tracing Transformations of Power through
Bedouin Women," Am. Ethnol 17, no. (1990); Constable.
61 Scott.
62 Ibid., 138-139.
63 Ibid., 138-139.
21

employed strategies to manipulate employers and to lessen subjugation by defining what they
would or would not give to employers in terms of time, commitment and personal involvement.64
Later works documenting how domestic workers resist certain aspects and effects of power
have taken a broader view of power and of the means while underscoring paid domestic work.
For example, Yeoh and Huang, in viewing the negotiations of public space use in Singapore
between domestic workers and the host society, assume that domestic workers display certain
styles and strategies to challenge the dominant discourse of the fixed identities as workers,
domestics and aliens without any right of public space occupation'. 65 Further, Yeoh and Huang
noted cumulatively, the actions of individual domestic workers to re-immerse themselves in their
native culture and individual strategies are not deliberately arranged. Rather, they are habitual
routinised practice that results in routinised colonisation such public spaces as parks and
shopping malls on Sundays. This routinised occupation shows that they are not weak at all. 66
However, they also stressed that these strategies and styles do not always successfully eliminate
the discriminative borders since there are more complex social relations underpinning the
boundary construction.67
Likewise, Chin has documented that Indonesian domestic workers in Malaysia have had
such infrapolitical activities as foot dragging, feigning illness, smearing employers' possessions
with blood, and dressing and acting differently on rest days as means of challenging the
extracting and exploitative practice of the dominant party.68 She went further by highlighting that
they also employed these strategies to contest the identity construction process based on
64 all cited in ibid., 138.
65 B. S. Yeoh and S. Huang, "Negotiating Public Space: Strategies and Styles of Migrant
Female Domestic Workers in Singapore," Urban Studies 35, no. 3 (1998): 599.
66 Ibid., 598-599.
67 Ibid., 599.
68 Christine B. N. Chin, In Service and Servitude: Foreign Female Domestic Workers and
the Malaysian "Modernity" Project (New York: Columbia University Press, 1998).
22

symbolic and material dimensions of class intertwined with gender, race/ethnicity, religion and
nationality'.69 However, she questioned whether these activities were effective to contest the
employer-constructed identities due to the potential backfire and further negative representations
of foreign domestic worker in and through the dominant discourse of paid domestic work as
narrated by the dominant party.70
While these works recognize the more complex workings of power and its effects (e.g.,
power exercised through discourse as illustrated in Chin's research and the effect of contestation
over the use and 'colonization' of public space in challenging the 'self other boundary' in Yeoh
and Huang's works, they focus merely on the effects of noncompliance acts while overlooking
domestic workers deference/compliance or deliberate attempts to conform to idealized images
and identities of domestic workers in the host states.
Admittedly, the strategies described in these case studies are similar to resistance strategies
detailed by Scott (1985)71. Here are some strategies exercised by migrant domestic workers in
practicing their resistence to their employers power in different forms of conflict that they had
been involved.
In response to scolding or complaints from employers, as consummate actors, migrant
domestic workers shout out a recited Yes, maam, disguising their true feelings
(dissimulation). In the case of Latifah, she considered her employer as stubborn and determined
not to change her argument, eventhough she was wrong. Once, Latifah was asked to cook a
certain food (she cannot recall what it is). She argued the people in the house never wanted that
food. The Datin seemed to be not happy and showed her anger. She insisted forcefully to cook
the food. Since then, Latifah realised that her employer never accept the word no, any refusal
or contradiction. She always pretended to cope with any situation, to make her employer happy.
According to Latifah, her employer would always be happy to see her absolute obedience to the
employer.

69 Ibid., 126.
70 Ibid., 126.
71 Scott.
23

Likewise, Jumanah knew very well that talking back to the employer would result in even
worse situation. Jumanah said that:
When I was at the training center in Indonesia, the teachers always reminded us not to
argue to the employer, although we are right. Otherwise, the employers would be more
upset. We were taught not to say even a word when the employer got angry.
Jumanah (translated from Bahasa Indonesia)
It happened also to Hesti. In times when she had to face up the fact that the female employer
was angry with her and scolded her Hesti kept herself not to be reactive. She listened what the
employer said but responded no single word. This kind of defensive mechanism was proven to
be successful. The anger diminished and vanished gradually.
Being not reactive was effective to stop the conflict. Allowing the employer to burst into
anger was good to release the temper to obtain emotional stability. Meanwhile, listening
to what she said was a wise way for me to know what she expected, while introspecting if
I had probably done wrong.
Hesti (translated from Bahasa Indonesia)
To swear honesty against accusation is what Nia Kurniawati did in response to the criminal
conviction from her employer. Nia did so when conflict had mounted to the intolerable tension.
Once she was accused of stealing, which she strongly denied. Although they could not prove the
accusation, they insisted that she had wronged them. Getting rid of further dispute and conflict,
she offered her 4-month salary to compensate the loss. This represented, unfortunately, a kind of
admission of guilty.
I was accused of stealing some money. Of course I didnt, but they insisted I did,
although they failed to prove. I dont want to get involved in dispute or conflict. I offered
them to deduct my salary to compensate that loss; as much as 4-month salary.
Nia Kurniawati (translated from Bahasa Indonesia)
Such was also the case for Jumanah. The common way to prove innocence among the
migrant domestic worker, as Jumanah did, was swearing which was hardly believed by the
accuser. To assure her not being guilty for stealing, Jumanah naively offered the employer to
charge the loss to her, and offered her to deduct her salary to compensate the accused loss,
although she was strongly affirmed that she did not do the accused act. In her case, the missing
skirt was finally found.
I am swearing, in the name of Allah I did not do it. Please cut may salary even a year,
but I did not steal it. Nevertheless, the sister-in-law did not believe on me and kept
suspecting me on stealing. During a month she got angry, cut me off, and spoke above me
and threatened to cut my salary. Finally she found the skirt somewhere in her room.
24

Jumanah (translated from Bahasa Indonesia)

Leave their workplaces legitimately (desertion). This was what Latifah had done. Actually,
she always got along very well with her employer, but not with her daughter in law who lived in
the same house. The daughter in law was a bit silent and speak very little or not at all. When she
got angry she just went silent and became very noncommunicative. One day, Latifah made a
mistake and she did not talk at all. On the contrary, she wrote a letter and dropped it to Latifahs
room. Unfortunately, this was very painfull for her as she is very much into self-expression.
Can you imagine how painfull it was, if we had lived at the same house and never
talked? I simply glanced at that letter and then burned it. It hurted me and made me feel
worse than if she had just done the deed with true courage.
Latifah (translated from Bahasa Indonesia)
At that time, I was stressed and think to step out, finding a place away from everybody. I felt
it would be helpful to have a friend, relative or significant others with me. I eventually went to
my uncles home in Kuala Lumpur, about 2 (two) hours driving by taxi. I thought this might help
me to keep my self calm during the taugh times. I told him about what happened and the person
that upset me. Fortunately, he understood and readdressed the situation to my employer. It took
me only 3 (three) days to straighten the situation and I went back to Damansara and started to
work again.
Third party mediation. Hesti, an independent and brave girl was frequently assigned in shop
assistance. Her extensive interaction during the shop-assisting service has opened up her mind
about the inherent legal rights of domestic workers. She had good contact with the local
policemen who always friendly greeted her whenever they met. She also had a good relation with
the other some Chinese people from whom she learned not to speak harshly or behave rudely.
Her good relation with the local policemen had become a kind of protector or resolver to her.
The policemen once came to my employer and advised them not to be harsh and rude to
the employees. Since then, the employer showed much better appreciation and respect to
the employees. No more blaming!
In addition, it appears that a significant number of Indonesian women might use black
magic to protect themselves from unreasonable employers; hence, Indonesian training centres
regularly search and confiscate black-magic- related special stones, roses, and slips of paper
25

with Arabic writing from departing domestic workers. Women also devise strategies to resist
exploitation by family members in their home countries. In some conversation with Latifah,
implicitly she disclosed that reciting the wirid dan zikir suggested by her spiritual teacher would
calm down any anger and madness and bring in mercy and love to her. Likewise, Latifah had
conflct with other domestic workers. They were jealous for the close and favorable contact with
the employer and had accused her of having exercised some form of magical spells to the
employer. She declined the accusation and claimed that what she had performed had been the
obligatory and advisable shalats and a bit longer of zikir recitation.
Many of these strategies are doable because domestic workers actually witness the power
dynamics of family members and are aware of the familys daily routine and schedule. This
study provides evidence of various strategies of resistance used by domestic workers that go
beyond those detailed by Scott.
Conclusion
A great number of studies have theoretically and empirically explored whether social status
and legal life are related. Consensually, law is perceived an elite-controlled instrument to achieve
their objectives. It is widely perceived that legal agencies are too exclusive that people with
lower-status have no or limited access. If they happen to have, lower-status people will stand as
defendants against the people with higher standing. Sociologically, it is hypothesized that,
higher-rank people are more likely to file complaints against the inferiors. In addition, the use of
the law is more prevalent among higher-ranking individuals than lower-status individuals72
Equally important, reluctance seems to contribute to the low rate of complaint.

Some

cultures develop a reluctance to confront. Particularly, the poor are reluctant to deal with the
courts. They are reluctant because the society strongly stigmatize law encounter for whatever
reason and in spite of innocence. In these cultures, litigation is equivalent to trouble making and
police investigation may be socially interpreted as guilty until proven innocent. In spite of the
importance of these cultural factors, it is found that for the poor, avoidance to the legal system
reflects a parochial traditionalism rather than a rational response. To this phenomenon, Hill

72 M. P. Baumgartnert, "Law and the Middle Class," Law and Human Behavior 9, no. 1
(1980).
26

suggested in a study of 17th Century England that as long as the content and application of the
law is stacked against the poor, the poor will see the law a threat.73
Almost all of the participants of the study had little understanding of their rights under
Indonesian or Malaysian law and the contracts they had signed. Further, they also had very
limited awareness of redress mechanisms available to them should they suffer mistreatment.
While some domestic workers seemed to know where to go if they had a problem in the
destination country, they had not been informed and had no knowledge of the procedures or
documentation required to seek redress.
In response to the difficult employment, domestic workers have developed some strategies.
The resistance strategies are aimed at alleviating the physical and psychological burdens. As
detailed by Scott (1985), employees will call or talk to friends with the absence of the employer.
Or else, they only complete the observable works and leave the unnoticed parts. On the one
hand, employers develop higher trust to domestic workers because they have daily interaction.
On the other hand, employers exercise lower control on domestic workers. In fact, many
domestic workers exercise some strategies of resistance such as dissimulation, murmering in her
own language, swearing honesty against accusation, leaving their workplaces legitimately
(desertion), third party mediation and using black magic. Many of these strategies are
successfully executed because domestic workers know very well about the family power
dynamics and the familys daily routine and schedule. This study provides evidence of various
strategies of resistance used by domestic workers that go beyond those detailed by Scott.
Researcher found that domestic workers provide information to employers about neighboring
families and use family claims in negotiating with their employers. In addition, it appears that
a significant number of Indonesian women might use invocation of zikir to protect themselves
from unreasonable employers.

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